In response to media enquiries about whether a notice posted by a restaurant stating that it refuses to serve participants of the Universal Community Testing Programme (UCTP) is unlawful under the anti-discrimination ordinances, the Equal Opportunities Commission (EOC) released the following statement today (31 August 2020):

1. The current four anti-discrimination ordinances in Hong Kong apply to different areas of public life, including the provision of goods, services and facilities. As providers of catering services, restaurants are subject to the application of the ordinances. They have the responsibility to avoid discrimination against customers on the grounds of race, disability, sex and family status when providing goods, services and facilities.

2. The notice indicates that the restaurant’s decision not to serve UCTP participants is premised on two assumptions or speculations: (1) they are likely to have been infected with COVID-19; and (2) they have an intelligence quotient lower than 65, thus are unable to appreciate the high quality of the food served by the restaurant.

3. Under the Disability Discrimination Ordinance (DDO), “disability” is defined to include not only total or partial loss of a person's body parts or bodily or mental functions, but also the presence of organisms capable of causing disease or illness in the body, such as viruses. Besides existing disability, the law covers disability that “previously existed”, “may exist in the future”, or is “imputed” to a person (even if the person being discriminated against does not in fact have this disability).

4. The restaurant in this instance has taken the view that people who have participated in UCTP are susceptible to infection with COVID-19, i.e. developing a “disability” as defined under the DDO. However, there appears to be no reasonable grounds for this view. Therefore, refusing to serve UCTP participants can hardly be argued as “reasonably necessary” for the purpose of protecting public health, and doing so – with the ostensible reason that they have probably been infected – is likely to be unlawful under the DDO. In addition, the restaurant further assumes, again without reasonable grounds, that UCTP participants have “an intelligence quotient lower than 65”. Such an intelligence level constitutes a “disability” as defined by the DDO, therefore it may be unlawful under the DDO for a restaurant to impute this disability to UCTP participants and refuse to serve them because of this assumption, even when it is not true. In light of the above, the EOC believes that the notice represents a blatant encouragement of discriminatory practices on the part of the restaurant as a service provider, and should be strongly condemned.

5. In the past few months, the EOC has issued various statements to explain relevant laws to the public, and to remind restaurants and other service providers to avoid discriminatory practices against customers that are ostensibly aimed at disease prevention but are in fact unreasonable or unnecessary for the said purpose. The notice posted by the restaurant flies in the face of the principles repeatedly communicated by the Commission. The EOC, therefore, feels obliged to point out that such discriminatory behavior cannot and should not be tolerated by society.

6. Mr Ricky CHU Man-kin, Chairperson of the EOC said, “The UCTP is a disease control measure designed to identify asymptomatic COVID-19 patients in the community and cut off ‘silent transmission chains’. As the pandemic has yet to be kept in check, we need full public support for containment measures to be effective and succeed. In any case, ungrounded allegations about the UCTP or its participants would not be productive at all. The EOC opposes all forms of discrimination, and sincerely hopes that all sectors of society can set aside prejudices and fight the virus in solidarity. We must follow reason at all times, and avoid discriminatory language and behaviour that may fuel social tension and conflict.”

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Equal Opportunities Commission
31 August 2020